We have all been there. You wake up in the morning after a bit of a long night after having a few (too many drinks) and then realize it is time to go to work. Many choose either to "man-up" and go to work while others choose to retreat for a better position I.e. calling in sick. The latter is to a certain exact accurate because under such circumstances you do feel (among many other things) sick.Earlier today my eye caught a judgment issued by the Court If Aruba in a labor dispute. After a few rum and cokes this dude decides it is time to go to work. I would have chosen to go to bed, but anyway, at work it was noticed (or perhaps blatantly obvious) that our friend was not his old self (his unusual speech or lack. thereof may have tipped his supervisors of.

This lead to a supervised blood and alcohol test. The results confirmed the suspicion. Now it is no surprise that drinking on the job or showing up drunk may not be the best thing for your career, but too as salt to injury (or in this case maybe lime to a rum coke) the individual figured that swapping the urine sample for the test would help his cause. It would have (maybe) but not when you get caught doing this. From the judgement, I was not able to find out how he was caught, but he was caught.Too keep a short story short, the court ruled upheld the immediate dismissal given.This teaches us a few things:

1. showing up intoxicated to work is not a good way to get a promotion.

2. it is better to have a designated driver than it is to have a designated urinator.

After writing this I am ready for a drink (or two). Good thing I don't have to work tomorrow.

In a June 21st, 2016 decision of the Court of First Instance of Aruba the court re-emphasized the particular position of managing directors when there is a conflict with the general meeting of shareholders a/o the supervisory board of directors.

The matter at hand revolved around a dispute that arose as a result of the fact that the general meeting of shareholders expressed a lack of confidence in the managing director and as a result of this exercised its corporate powers to dismiss the managing director. The managing director challenged the termination based on the argument that the dismissal was unjustified. In the decision the Court re-emphasized the fact that in these cases the Court can only apply a limited margin of appreciation when evaluating such claims and that a compensation in these cases is only applicable if: (i) the dismissal could not have been reasonably given based on the grounds given; or (ii) if the consequences of the dismissal for the company are minor compared to the consequences for the dismissed managing-director. The margin of appreciation applicable to regular employees is broader under Aruba law. The court disagreed with the

The court disagreed with the managing director on the argument that the grounds given for the dismissal were false. The court further considered that the interests of the company to have a managing director in which the shareholders have full confidence outweighed the interest of the former managing director to remain in the position of managing director. The court also considered that in this matter the former managing director was paid the company an amount equal to the contractual notice of termination period for a total of a little more than half a year. Another relevant fact was deemed that managing directors (generally) enjoy a higher compensation package compared to regular employees and that this higher pay accounts for the inherent risks of the position of managing director.

This decision emphasizes the corporate powers of the general meeting of shareholders of Aruba companies to dismiss managing directors and the importance for parties to have clear contractual provisions on the consequences of termination of the managing-directorships.

As of October 10, 2010, the Netherlands Antilles as a jurisdiction within the Kingdom of the Netherlands has ceased to exist. Instead, two separate new jurisdictions, Curaçao and Sint Maarten, came into existence. The other three islands of the current Netherlands Antilles (Bonaire, Sint Eustatius and Saba, known collectively as the BES islands) became overseas municipalities of the Netherlands; public bodies as described in Article 134 of the Dutch Constitution.

Curaçao and Sint Maarten became autonomous parts of the Kingdom of the Netherlands, with a status comparable to that of Aruba. Curacao, Sint Maarten and the BES-islands have created their own independent intellectual property offices. Trademark owners who used to register a trademark in the Netherlands Antilles now have 3 separate Intellectual Property Offices to deal with.

So as an entrepreneur you developed a product or a service, you are ready to launch or have already launched and are now ready to spread your wings and market into places like Aruba, Curacao, Sint Maarten, Bonaire, Saba and St Eustatius (or not), here a few things you ought to keep in mind:

1.The islands of the Dutch Caribbean consist of 4 separate and distinct jurisdictions for trademark purposes.

2.Having a trademark registered in one of the islands doesn’t give you protection in the other islands.

3.Having a trademark registered in the Netherlands doesn’t (necessarily) give you protection in the other islands.

4.The basis for trademark protection differs among the islands. Aruba is based on the “right of first use”. While in some of the other islands it is based on “first to file”.

5.The cost/fee structure is variable from island-to-island. Some of the government fees were recently implemented while others are dated and are subject to change when the government feels the need to adapt the government fees.

6.Exclusive agency or distribution agreement does not provide you with exclusive rights to sell a product i.e. parallel-import isn’t prohibited.

7.Even if you don’t intend to sell or market your product in the islands, you are well served by having the right trademark a/o copyright protection in place. The presence of free (trade) zones in the islands and in the region along with the geographical location can make the islands vulnerable for transshipment of counterfeit products.

8.Aruba is a great location to base your intellectual property portfolio and manage this throughout the Caribbean and Latin America.

10.My team is not only well-versed at handling trademark registration matters but have a track record on enforcement matters and litigation, with a number of landmark cases at the Supreme Court of The Hague.

11.Ooh.... and did I mention we speak all the (6) languages that are used in the region.

In our everyday life many are attracted to the seemingly glamour and excitement of business aviation. Not only is it a silent dream to own or fly in one of these jets, but for some lawyers in offshore jurisdiction it is also a dream to be able to be involved in the registration and finance aspects of business jets. As an owner or operator you on the hand want to make sure that your valuable mobile asset is in qualified and experienced legal hands. Here a are a few practical tips to keep in mind when looking for a lawyer in an offshore jurisdiction to manage your aircraft registration and finance aspects:

1.Ask for references. If you are the registering for the first time in a certain offshore jurisdiction ask your aviation lawyer in your home country for a reference. They should be able to provide you with some recommendations. Be explicit about your question. Ask your lawyer if he has worked with that offshore lawyer before? And, if it was a specific business jet registration matters in that jurisdiction. If the seller of your new jet is a manufactures, ask them for reference. While a manufacture is likely not to favor any particular professional often they will share past (positive) experiences. Getting financing from a bank or lessor? Ask them and/or their lawyers for a reference. If they have done business in that offshore jurisdiction before ask them which lawyer handled their cases before?

2.Ask for qualifications. Make sure your off-shore lawyers is actually a lawyer and not a mere legal advisor that is not (fully) admitted to the Bar. Also ask if they have complied with all requirements to practice law independently. Some jurisdictions allow lawyers to practice while completing an apprenticeship program. If they are still under apprenticeship you want to make sure that the lawyer in charge of that learning program is well versed on these matters. When it comes to your business jet, don’t entrust it to an apprentice.

3.Aviation is not necessarily business aviation registration. Aircraft registration and finance is a very specific subject. The fact that a lawyer represents an airline or has handled passenger related matters doesn’t mean that he/she has the necessary experience in registering an aircraft or handling the specific related financing matters.

4.Ask for publications. I have the pleasure of working with some excellent lawyers in the field across the globe and I enjoy reading their ongoing publications or following their lectures at law schools on the subject matter. Ask for publications or academic lectures given. The ability or willingness to undergo scrutiny of or by professional peers is a good indication of the level of qualification of your lawyer.

5.Conferences. Anyone can attend a conference on any subject matter including business aviation. While attending such a conference can be very educational for many of us you want to be sure that your lawyer is actually speaking on registration matters in front of his/her peers or at least is seen as an authority by his/her peers and isn’t merely there for the (almost) free cocktails (and public relations).

6.LinkedIn. Check-out LinkedIn profiles for reference to aviation registration and finance experience. In absence of these references ask for the reason.

7.Experience. Be on the look out for specific experience. Someone boasting “decades of experience” as a lawyer doesn’t mean they have the required experience on aircraft registration and finance matters in the jurisdiction where you want to or are considering registering your business jet. By the same token someone with “some experience” may not be the guy or girl you are looking for.

Your business jet is an important and valuable mobile asset. Selecting the right offshore lawyer to manage your registration process can be as valuable as selecting the right pilots to fly your jet. Be diligent, ask questions and more importantly remember that” not all that shines is gold”.

The first edition of the World Aircraft Repossession Index, including 57 important jurisdictions worldwide, has been published on October, 30th, 2015. The initiative to realise this unique work was undertaken by the law firm Pillsbury Winthrop Shaw Pittman LLP and it is available free-of-charge. See the websites below. The publication is a most workable tool for risk rating agencies, export credit institutions, lessors, financiers, practicing lawyers, academics, students and the international aviation finance and lease practice at large. Lincoln Gomez and Patrick Honnebier of the law firm Gomez & Bikker had the pleasure to be invited to participate as the counsel for the jurisdiction Aruba in regard to providing the local expert analysis.

The final outcome of the local research is based on seven special criteria, which numerically establish the legal and practical success of repossessing aircraft in each contributing country. Besides, the index provides for an overview and a worldmap which highlight the overall score of each participating jurisdiction.

We are delighted to emphasize that worldwide Aruba has the highest score of all the 57 contributing states. 

We are delighted to emphasize that worldwide Aruba has the highest score of all the 57 contributing states. In addition, it is particularly noteworthy that the competing 'aircraft nationality registries of choice' have obtained much lower aggregate scores. While worldwide Aruba is the only country having an overall 100 % score, the latter off-shore aviation finance jurisdictions have scored between 58 and 91 %. In summary, the publication clearly confirms that Aruba is the leading registry of choice!

This Registry of Aruba was the first privately managed Category-1 aircraft registry in the world as rated by the FAA. Aruba was also the first off shore aircraft jurisdiction to adopt the Cape Town Convention, as early as in 2010. Aruba’s sound legal system and sophisticated courts can also offer even more value to the business aviation community. The Courts of Aruba just evidenced the latter through recent decisions which are favourable for Lessors/U.S. Trustee Lessors.

Aruba’s sound and efficient legal system – combined with proper application thereof - allowed for an internationally operating lessor to arrest a YV-(Venezuelan) registered aircraft in Aruba and within days obtain a favorable decision by the court ordering the lessee to release the aircraft and records and to de-register the aircraft from the YV-registry. To encourage compliance with the courts decision the court awarded an immediately payable penalty of US$ 100,000. -- per day or per portion thereof up to a maximum amount of US$ 6,000,000.--.

It is noteworthy that the decision was scheduled for 2 weeks following the hearing, however in the interest of both lessor and lessee to obtain certainty over the status of the aircraft and to preserve the integrity of the aircraft the Court of First Instance of Aruba issued the decision in 1 week!

The swift process evidences that the courts realize the importance of these aircraft related matters and is consistent with the Declarations as to the meaning of the word “speedy” in articles 13(1) of the Convention and X of the Protocol although the Convention was not applicable to the lease in question since the debtor was a Venezuelan entity and Venezuela is not a party to the Convention. This shows that the Court of Aruba is reliable and efficient.

The aircraft lessee was a Venezuelan start-up airline who during the certification process had been in default for almost 2 years. The aircraft came to Aruba on a test flight and the lessor was able to use Aruba as forum arresti. New York law was the law governing the lease and the Court upheld the application on NY law including the default(s) of the lessee and the termination of the lease.

I would also like to point out that the recent decision of the Court was the second issued in 2015, as earlier in the year the Court ordered, arrested and liberated a foreign registered and stolen (!) aircraft when it landed in Aruba. The difference with the earlier case is that it was a judgment by default, which would allow certain critics (and surely the skeptics) to claim that the court in these matters remains “untested”.

Well in this case the proof of the pudding is in the eating and in the opinion of the lessor and the lessor’s Aruba based attorney - yours truly – the pudding is/was delicious.

Aruba is located in the Caribbean and forms geographically part of the Lesser Antilles. It is located a mere 12 miles from the coast of Venezuela. The island has a free zone and s located close to other free zones located in Curacao, Venezuela and Panama. Aruba is known for its tourism. The combination of these factors makes Aruba vulnerable for the trade in counterfeit products. Not so good news for brand owners. The good news for brand owners is that Aruba’s legislation contains effective remedies for the fight against counterfeit products. This includes the possibility to place an attachment on counterfeit products, no matter if these are located in retail stores, warehouses or in transshipment. This can be done in an extra-judicial hearing without need of having the counterfeiting merchant present or represented.

Following such order a court appointed bailiff can go to the locations where the counterfeit products are found and seize these products. Subsequently an order can be obtained from the courts to destroy the counterfeit products as well as to obtain information about the supply chain and quantities ordered. This entire process can take place in a matter of weeks. The same effective remedies can be obtained in the other islands of the Dutch Caribbean. Over time many brand owners were able to successfully use these remedies to score a victory over the bad guys. Gomez & Bikker has been involved in a number of these actions and have the experience and know-how to successfully plan and execute such actions. We look forward to working with our colleagues from INTA and ASIPI in these matters. For more information contact us.

Aruba law allows lessors of equipment such as casino/gaming equipment to place a court ordered attachment on equipment they have leased to defaulting casino operators. Such an order can be obtained based on a prima facie claim. In case of gaming equipment it can be sufficient to show that the casino operator is in default of payment lease terms a/o that the lessor of the equipment has terminated the lease under the applicable laws of the lease agreement. Such an attachment can be part of a strategy geared towards collection of the outstanding amounts a/o repossession of the equipment.

The courts of Aruba in principle will uphold the choice of law made in the equipment lease agreement. Subsequent to the attachment further civil action is required within terms set by the court order to perfect the attachment and to obtain a ruling awarding the return of the equipment a/o the amounts owed under the lease. In a recent decision the courts of Aruba upheld the attachment placed on an commercial aircraft whose operator had been in default. The same principles that apply to the aircraft attachment will apply in case of gaming equipment.

A YV-registered aircraft was arrested in Aruba. The lessor, a U.S. Trustee, had procured an arrest order for the aircraft. The aircraft had landed in Aruba while performing a test flight. Following summary proceedings filed by the lessee and counter-claim filed by the lessor, the Court of First Instance ruled in favor of the Lessor. The Lessor was represented by Lincoln Gomez.

Our founders have been primarily responsible for the liberalisation of the telecommunications market of Aruba during the early days of the millennium. This contribution unequivocally sparked and acted as a catalyst for the telecommunications infrastructure available today on the island. Since then the firm has continued to be in the forefront of technical innovation on the island in the areas of: securities, energy and start-ups.

The Court of First Instance of Aruba is starting a pilot program to allow civil matters to be litigated electronically. On September 25th, 2015 the Court held an informative session with members of the Aruba Bar Association to outline the process and procedures that will be applicable. The pilot will be done on a voluntary basis for lawyers that want to be part of the pilot. Participating lawyers will be able submit court documents in civil matters. The exchange will take place on an encrypted basis. Due to stay duty requirements original complaints will - for now - have to be submitted in hard copy. Subsequent fillings, that don't require stamp duty can be exchanged electronically. The piot will be done on a dynamic basis and will be amended on the fly" to facilitate progress as the pilot continues. Appellate matters will be done on the conventional basis until such time that the Appellate Court and the Court of First Instance of Curacao, Sint Maarten and the BES-island join the pilot or a universal platform is developed. Gomez & Bikker will be part of the pilot and congratulates the Court with this initiative and the innovation.

Present at the installation ceremony of the latest court appointed bailiff Magali Croes. Court of First Instance of Aruba. Installation was performed by justice P. Lemaire in the presence of the prosecutor.

The bailiffs in Aruba are entrusted with official tasks which cannot be entrusted to anyone else. They are in particular entrusted with:Serving writs of summons and other documents, to commence legal actions or to give instructions in lawsuits;Serving court orders, announcements, protests and other writs;Evictions, attachments, sale of property by court order, commitments for failure to comply with a court order and other acts being part of or required for the enforcement of warrants of execution or for the securing of rights;The official supervision of voluntary sale of movable property in a public auction.’By virtue of the law, these tasks, insofar as they pertain to civil law, must be performed by bailiffs.